The most recent implementation of NSTAR’s poison plan of herbicide spraying throughout the Commonwealth and beyond found NSTAR in stiff disagreement with a family of Herring Pond Wampanoag Indians living on tribal land in Bourne, MA. The Chief of the Herring Pond Wampanoag Indian’s letter (see below) notified NSTAR that spraying on private land under the rights-of-way (ROWs) on their tribal property is a violation of aboriginal rights. Much of the land under the ROWs state-wide is privately owned. NSTAR’s spraying of herbicides without the owner’s knowledge or consent is a clear violation of civil/human rights that only adds to the complexity of the mix. Additional Cape properties with aboriginal rights may be identified soon.
In an interview with the Bourne Enterprise newspaper, the Herring Pond Wampanoag Chief Wayne Manter said that the Herring Pond Indian Plantation covers 3,000 acres, and he and his wife live on approximately one acre on the plantation. He has lived on the land his entire life, and generations of his family have lived there, as well. The chief explained that he and his wife get all their food and water from the plantation. Water is taken from a well, while food comes from fish they catch, animals they hunt (including deer and pheasant), and fruit grown on bushes. The couple said they are concerned that chemicals in the spray used by NSTAR in its vegetation management program may have found its way into their food and water. They said that they and several neighbors have also experienced some health issues that they suspect might be connected to NSTAR’s spraying. “NSTAR did not inform the Herring Pond Indians that the water or food sources on the Plantation would be sprayed with herbicides not meant for human consumption,” Manter said.
Many property owners on and abutting the NSTAR power lines are farming their own land and harvesting crops which may have been sprayed with herbicides NOT registered for agricultural use or even for use on residential property. ( Click here for a list of these herbicides.) Those herbicides ARE being sprayed by NSTAR and presumably consumed by abutters along with their potential to migrate through sandy soils to groundwater.GreenCAPE has made this discrepancy between herbicides utilized for ROW clearance and herbicides used on residential properties more than clear to the Mass. Department of Agricultural Resources (MDAR) via comment letters, in public hearings, and in personal conversation but that agency has continued to approve the chemical vegetation control method in successive NSTAR Yearly Operational Plans. We have also notified that same state regulator that NSTAR sprays -usually without notice to the property owner- in back yards, farms, municipal lands, conservation areas, zones of contribution to the public water supply, hiking and biking trails and other venues throughout the NSTAR service area where residents and visitors have an expectation of safety. How is this significantly different from any stranger coming on to your property, putting an unknown chemical formulation in your water or on food without your permission AND without even telling you? I am perplexed as to why no town, county, no state agency contacted (including Mass. Department of Agricultural Resources, the Executive Office of Environmental Affairs, the Attorney General’s Office) or even the Governor himself are stepping up to play hero in this election year. Does their deafening silence suggest “politics as usual”, willful ignorance, impropriety, or even worse? On two occasions I personally placed information directly in to the hands of Governor Patrick and asked him to intervene in this matter. He talked all about “generational responsibility” and promised to respond. It’s been a few years….
To follow is the full text of Chief Little Bear’s letter to NSTAR-Mr. Hayes, Senior Arborist
Mr. O’Brien, Supervisor, Lewis Tree
NSTAR Legal Department
One NSTAR Way, Westwood, MA 02090
800 Boylston St. Boston, MA 02199NOT TO SPRAY ON CLARISSA JOSEPH RD, SANDY POND RD, HERRING POND RD/ HERRING POND INDIAN PLANTATIONMr. Hayes,I request that you refer this e-mail to the NSTAR legal department immediately. I am faxing this e-mail and a prior e-mail to you dated September 11, 2014 to the Main Offices at One NSTAR Way, Westwood MA, and 800 Boylston St. Boston, MA along with 2 letters written to you from my attorney Christopher Senie.
I am a Herring Pond Indian residing within the Herring Pond Indian Plantation as set forth by allotment in the Indian Acts of 1850. Title to the Herring Pond Lands was reserved “for the Indians and theirs forever”, an invested entailment..and shown on “a map of Herring Pond Lands”-proprietors allotment recorded April 6, 1850 by the Commonwealth of Massachusetts, and referenced on a “Plan of Land in Bourne”-Douglas and Lydia Manter, recorded May 8, 1989 Barnstable County. The NSTAR ROW is located within the boundaries of the Herring Pond Indian Plantation subdivision of 1850. The intended use of herbicides in the ROW or drift from the ROW can contaminate my sources of water and food. The NSTAR easement in its entirety and your rights to maintain the transmission line is subordinate to my water rights within the entire Herring Pond Indian Plantation. I assert my “Winters Rights ” to both surface water and groundwater on my property and all other property within The Herring Pond Indian Plantation. For Indian water rights 1908 U.S. Supreme Court case Winters vs. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed, 340. The Herring River, Herring Pond and Black Pond are considered drinking water intakes for my self, Brandon Manter, and Michael Maxim Herring Pond/Mashpee Indian and all other Herring Pond Indians who reside on the Plantation. These water ways were established in 1850 as drinking water intakes, and the land for agricultural use. NSTAR cannot usurp my right to any waters within the Herring Pond Plantation, “the U.S. Supreme Court held the establishment of a reservation necessarily implied the rights to the water necessary to make the land habitable and productive.” The court ruled the Indians were entitled to enough water for all necessary usage even if it was small numbers of an Indian population. Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L Ed. 2d 542 (1963). The spraying of Imazapyr/Polaris according to EPA cannot be used within 1/2 mile of a surface drinking water intake. In other words, my rights to water come before the NSTAR easement of record. My right to water comes before the Commonwealths regulatory laws put forth by the Pesticide Board. My right to water comes before the Commonwealths usage of Herring Pond to recreate. Since Garlon 4 has contaminated waters east of the Cape Cod Canal, according to Silent Spring Institute, I believe your intended mis-use of Imazapyr and other herbicides within 1/2 mi of my ground water and surface waters will contaminate the water on the Herring Pond Plantation.
I am asserting my aboriginal rights over the lands of the Herring Pond Plantation including but not limited to the NSTAR ROW in the following manner: Hunting, fishing, fowling and gathering. Commonwealth vs. Michael J. Maxim 45 Mass. App. Ct. 49 1998. The U.S. Supreme Court has consistently upheld off reservation hunting and fishing rights. In 1905 United States V. Winans, the court ruled that treaty language guaranteeing a tribe the right to”take fish all usual, usual accustomed places” indeed guaranteed access to those usual and accustomed places, even if they were on privately owned land.” I assert my treaty rights of 1727 and the Treaty of Falmouth 1749. Native American Treaties are interpreted by what is known as the “Reserved Rights Doctrine” which means the Indian does not give up his aboriginal rights on the land even if the land is conveyed to a non Indian. United States Vs. Winans, 198 U.S. 371, 25 S. Ct 662, 49 L. Ed. 1089 (1905)
I was informed that NSTAR has sprayed the ROW within the Herring Pond Plantation with Krenite S, Escort XP, and Arsenal/Polaris. I and my son have eaten the wild berries on the ROW as well as hunting during that time, before and after. These herbicides are not for agricultural use but NSTAR did not inform the Herring Pond Indians that the water or food sources on the Plantation would be sprayed with herbicides not meant for human consumption. I would like confirmation if this occurred 4 years ago as my attorneys e-mail stated. I want to know what adverse health effects this could have on me or my son. Also, we are not drinking the water until our well water is tested.
Furthermore, I assert my civil rights under the American Indian Religious Freedom Act Public Law 95-341 1978 amended 1994. This is a U.S. Federal Law based on the first amendment enacted to preserve and protect my religious freedom and cultural practices as a native Wampanoag. The law extends protection to tribes, tribal members, natural descendants, and Indian allotments requiring all government agencies seeking to promote government policies or goals to eliminate interference with free exercise of native religion and to provide access to sacred sites. NSTAR is interfering with my ability to traverse the land to access sacred sites by intending to spray or having sprayed the land with toxic herbicides.
Again, I request NSTAR, New England Utilities and the contracted Lewis Tree Service Inc., or any other contracted tree service DO NOT PROCEED TO SPRAY HERBICIDES on the Herring Pond Indian Plantation.
Sincerely,
Douglas W. Manter
Chief Little Bear, Herring Pond
Tribal Council Member
Tribal Council Chairperson
Council of Elders
The experience of the Herring Pond Indians in Bourne is also reflected in the numerous calls I receive every week from angry power line abutters asking what is being done to stop this outrageous chemical trespass? After 5 years of this contentious debate over spraying the power line ROW properties that NSTAR doesn’t even own, it is certainly time their questions are finally granted a very public response from our elected and appointed officials and a strong effort made to spare NSTAR customers any further harm.
According to Wayne Manter- Chief Little Bear of the Herring Pond Wampanoag in Bourne- NSTAR has yet to confirm the date of earlier spraying on the tribal lands nor has the MDAR Commissioner Greg Watson returned their calls re: the violation of their aboriginal rights, their health and the health of their land. In 2011 GreenCAPE submitted a resolution opposing NSTAR’s spraying to the Town of Bourne Board of Selectmen which passed it unanimously (as have all 14 other Cape Cod towns and several on Martha’s Vineyard). This resolution can be submitted to town governments throughout the NSTAR service area.
After numerous attempts to contact the NSTAR arborist Bill Hayes to inform him of their concerns and to request a reprieve from the spraying of their tribal lands, the Manters were unsuccessful at getting a response. Since spraying was imminent but the contractor refused to reveal the date of the spraying, the Manters were forced to retain an attorney. This finally got a response from NSTAR. Currently the spraying has been suspended on the Indian land and the parties are negotiating though it is unclear what the final agreement will be. Looking at deed language could be the critical piece for halting the spraying on your own property as well. If NSTAR or their contractors are not agreeable to your request not to spray, legal action may prove less expensive than future health impacts from the herbicides and their “trade secret” ingredients.
Preventing exposure must be the priority. The effects of exposure to pesticides are often not evident immediately but can nonetheless have lasting consequences. If NSTAR continues to bully and spray their customers, some actions that will limit personal exposure to NSTAR herbicides can be found at http://greencape.org. See previous MBCC newsletter articles for more background on the surreptitious spraying of ROWs in NSTAR’s service areas. IF you are willing to be more active in protecting yourself, remember that under federal law, pesticide applicators are prohibited from spraying pesticides while non-applicators are in the spray area. Not for the faint of heart but a tactic that might be considered in critical situations. NSTAR continues to insist that their spraying program has “a long track record of success” and “and it creates an environment for wildlife.”
Submitted by Sue Phelan (info@GreenCAPE.org or 508.362.5927)